IN RE: Pureza Idarraga DE MARTINEZ (1997)

In a proceeding pursuant to CPLR 7510 to confirm an arbitration award dated July 28, 1993, Home Indemnity Company appeals from an order of the Supreme Court, Kings County (Yoswein, J.), dated May 16, 1995, which granted the petitioner's motion to confirm the award and denied its cross motion to vacate the award.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the proceeding is dismissed.

 The appellant insurance carrier did not participate in an arbitration hearing because of its concern that its participation in the arbitration, even though unwilling, might serve as a waiver of its objection to the arbitrability of the claim (see, Matter of Beagle [MVAIC], 19 N.Y.2d 834, 835, 280 N.Y.S.2d 399, 227 N.E.2d 313;  Matter of Nationwide Mut. Ins. Co. v. Damaskinos, 227 A.D.2d 627, 643 N.Y.S.2d 393;  Matter of Nationwide Mut. Ins. Co. v. Rothbart, 220 A.D.2d 509, 632 N.Y.S.2d 481).   Since the appellant did not participate in the hearing, it did not waive its right to appeal the denial of its application for a permanent stay of arbitration.   Because the stay was improperly denied, the proceeding must be dismissed (see, Matter of Home Indemnity v. de Martinez, 240 A.D.2d 580, 659 N.Y.S.2d 890 [decided herewith];  see, e.g., Matter of Hehl v. Government Empls. Ins. Co., 203 A.D.2d 572, 612 N.Y.S.2d 954).

MEMORANDUM BY THE COURT.